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Management lawyers hope the National Labor Relations Board will adopt a new approach
to collective bargaining when a Republican majority takes over the board in the coming
months.

During the past several years, Democratic majorities on the board staked out positions
on the duties of unionized employers under federal labor law. But President-elect
Donald Trump can fill two vacancies on the board shortly after he takes office. That
would quickly swing the panel to a 3-2 Republican majority.

Change won’t happen overnight, because the board will have to wait for new cases that
will allow the new members to weigh in on issues addressed by President Barack Obama’s
board. However, lawyers interviewed by Bloomberg BNA expect major changes in NLRB
rulings on the duty of joint employers to bargain with unions. They also anticipate
the board will at least slow its expansion of unions’ rights to demand information
from management.

Employers and unions are accustomed to seeing the agency oscillate on policy issues
when the White House changes hands, Kenneth J. Yerkes, a partner who chairs the labor
and employment department at Barnes & Thornburg LLP, told Bloomberg BNA. However,
he said, “all of the change of law and the trajectory”
of recent board decisions on bargaining appeared “to reason to a conclusion that is
favorable to labor.”

The new board may reconsider some of the most important rulings of Obama appointees,
and there could be major changes in the board’s analysis of union-management relations,
Yerkes and another management lawyer told Bloomberg BNA.

The board has “reverse-engineered”
precedent in recent cases to justify outcomes that were favorable to unions, Yerkes
said. He’s hopeful a new board will fairly analyze the behavior of employers and negotiators
as well as the process of collective bargaining.

James M. Stone, office managing principal of Jackson Lewis PC’s Cleveland office,
said he expects a “less activist, more neutral” NLRB will revisit some of its most
controversial rulings.

New Board May Change Case Analysis

Unionized employers are required to bargain in good faith with the organization representing
employees. The NLRB has issued dozens of decisions under Section 8(a)(5) of the National Labor Relations Act, which sets employers’ good faith obligations.

The act traditionally has allowed employers and unions leeway to reach their own agreements
through negotiations that may include rough-and-tumble rhetoric and economic pressure.

However, the management lawyers argued that the board has in recent years been too
willing to intervene in labor-management relationships and too quick to conclude that
employers were engaged in unlawful attempts to frustrate the honest give-and-take
of good faith bargaining.

Some of the most important decisions going back to 2011 overruled earlier precedents
and were adopted over the objection of dissenting Republicans on the board.

Prior rulings—some favoring employers and some favoring unions—were focused on an
employer’s participation in a bargaining process, said Yerkes, who is based in Barnes
& Thornburg’s Indianapolis office. But the board’s recent holdings reversed a traditional
legal analysis to arrive at a particular result, he said.

“For me, that’s the mischief,”
Yerkes said. He added that he hopes the board will return to analyzing an employer’s
bargaining conduct by examining what the organization did, when, and why, rather than
constructing an analysis to justify a particular result.

Joint Employment Cases Could Be Rolled Back

Until Trump announces his selections for the NLRB vacancies, predicting board actions
is “reading tea leaves,”
Stone said. His firm, however, “believes, for sure, there will be a tempering of the
activism” that was shown in recent decisions, he said.

The NLRB held 3-2 in
Browning-Ferris that separately owned companies can be considered joint employers if they retain
indirect control over an employment relationship covering a group of employees.

In
Miller & Anderson, the board held 3-1 that unions can seek representation elections in units that combine
workers of one company with employees who are provided to the company by another organization.

The rulings were a “significant expansion of the law” and have created considerable
confusion about the bargaining obligations and business relationships of franchisers
and franchisees, contractors and subcontractors, and other business entities, Stone
said.

"[O]ne would expect” the new NLRB will abandon
Browning-Ferris and go back to requiring evidence of direct and substantial control over employment,
Stone said. He also said the board would likely revisit and change its
Miller & Anderson decision to reinstate a requirement that employers consent to multi-employer bargaining
before the NLRB can order independent companies to negotiate jointly with a union.

Obama Board Precedents Will Be on the Table

Several other decisions on bargaining issues were the result of 3-2 or 3-1 decisions,
and could see a reversal if heard by a new-majority board.

The following list of decisions include cases defining mandatory subjects of bargaining
under the NLRA (discipline, work rules, and employer practices), rulings on employer
obligations to refrain from making unilateral changes and discontinuing union dues
deductions after the expiration of a collective bargaining agreement, and board decisions
on the obligation of an employer to allow a union reasonable time to negotiate a contract
after the union becomes an employee bargaining agent.

Total Security Management Illinois 1, 364 N.L.R.B. No. 106, 207 LRRM 1282 (2016)
. The board found 3-1 that an employer violated Section 8(a)(5) of the NLRA by discharging three employees in an exercise of discretionary discipline
without providing notice and an opportunity to bargain to a newly certified union
that had not yet negotiated a contract.

E. I. Du Pont de Nemours, 364 N.L.R.B. No. 113, 207 LRRM 1356 (2016)
. The board found 3-1 that discretionary unilateral changes ostensibly made pursuant
to a past practice developed under the management-rights clause in an expired collective
bargaining agreement were unlawful.

Graymont PA, Inc., 364 N.L.R.B. No. 37, 206 LRRM 1723 (2016)
. A company unlawfully failed to tell a union it didn’t have any material responsive
to the union’s request for information about changes in work rules and policies, the
NLRB held in another 3-1 ruling.

Loomis Armored US, Inc.,
364 N.L.R.B. No. 23, 206 LRRM 1605 (2016).
Overruling a 32-year-old precedent, the NLRB held 3-1 that an employer that voluntarily
recognizes a “mixed-guard union” must continue to recognize and bargain with the union
unless and until the labor organization has lost the majority support of employees.

Lincoln Lutheran of Racine, 362 N.L.R.B. No. 188, 204 LRRM 1234 (2015)
. An employer’s duty to abide by a union dues checkoff provision under which it deducts
dues from employees’ paychecks and remits them to the union survives the expiration
of the relevant collective bargaining agreement, a divided board ruled 3-2.

American Baptist Homes of the West, 362 N.L.R.B. No. 139,
203 LRRM 1717 (2015)
. An employer had no blanket right to deny union requests for access to witness statements
that were secured during a company investigation, the board held 3-2.

Pressroom Cleaners, Inc., 361 N.L.R.B. No. 57, 201 LRRM 1001
(2014)
. In a 3-2 decision, the NLRB found that when a successor employer has violated the
NLRA by unilaterally changing a predecessor’s terms and conditions of employment,
the board will order restoration of the predecessor’s terms and conditions until the
parties bargain in good faith to agreement or impasse.

Lamons Gasket Co.
, 357 N.L.R.B. 739, 191 LRRM 1157 (2011)
. In a 3-1 decision, the board ruled that a representation election petition is barred
for a reasonable period of time following voluntary recognition of a union designated
by a majority of employees.

UGL-UNICCO, 357 N.L.R.B. 801, 191 LRRM 1175 (2011)
. The NLRB decided 3-1 to restore a “successor bar” doctrine requiring employers to
recognize incumbent unions for a reasonable period after a business transition without
challenging the majority status of the employees’ bargaining agent.

To contact the reporter on this story: Lawrence E. Dubé in Washington at
ldube@bna.com

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